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Ninth Circuit Ruling on Peruta v. Cty. of San Diego


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Obama cannot be a SCOTUS Justice, or any court, at this time. He does not hold a license to practice law anywhere in the country. He let his Illinois license lapse.

 

This is not true. There is no requirement for a justice to be a lawyer. The constitution doesn't specify any requirements for justices such as age, education, profession or being a native born citizen. However, in practice since the mid 20th century all justices have attended law school.

 

 

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There is a difference between being a lawyer and having a license issued by The Bar. Since the creation of the Bar, every justice has had a license. This image is also worth considering.

 

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It takes years of legal training to interpret "the right of the people to keep and bear arms, shall not be infringed" to mean "there is no right of the people to keep and bear arms".

I was reading the rant of someone who "studied law in school" and she said in no way does it mean private ownership is meant.

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Don't be so sure of everyone in Illinois voting for Clinton.

Nobody thought Quinn would lose to Rauner either.

I still have a doubt that he actually won on his own. I think the dems voted him in. They will use him as scapegoat as they have been with the budget, and in the end we will get a rebirth of dem governors because of "look what the Republican governor did!!!"

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Don't be so sure of everyone in Illinois voting for Clinton.

Nobody thought Quinn would lose to Rauner either.

I still have a doubt that he actually won on his own. I think the dems voted him in. They will use him as scapegoat as they have been with the budget, and in the end we will get a rebirth of dem governors because of "look what the Republican governor did!!!"

 

 

Many dems voted for Rauner.

Quinn was clearly a no go.

If Madigan faced even a city wide electorate, he would be gone as well.

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What happens if a court case makes it's way to the 9th circuit challenging that ban on open carry? If someone were to challenge the open carry bans as unconstitutional it may stand a chance in the 9th circuit since the 9th circuit stated that concealed carry is not the protected right. If concealed carry is not protected than open carry must be the protected right. Also if the supreme court rules they may be forced to state in the ruling that open carry is the protected right. If people were to begin legally openly carrying in California in large numbers it may pressure politicians change the licensing system to shall issue.

That's the thinking. See the Nichols case at californiarighttocarry.org . There's also the Hawaii case Baker which was originally heard with Peruta when it originally was heard by the 9th. It's currently in limbo; no one knows if it gets reheard by a 3 judge 9th circuit panel or gets sent back to the district. Baker had asked for a license to open or conceal carry.

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The thing that concerns me about the upcoming election is that Trump won only open primaries. How may democrats crossed over just to vote for Donald figuring he will be the easiest to beat?

 

Exactly why we need to cut the "I am voting 3rd party" stuff out. I get that he is not the first choice of many but if Hillary is not your preferred candidate then you had better vote Trump. Realistically there are 2 people who have the chance to be elected in November.
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The San Francisco-based 9th Circuit's finding is recklessly ill-informed, fatuous and/or utterly disingenuous. The majority justices exhaustively researched United States laws from the 18th thru 20th century specific to concealed carry. They understandably discovered legislative and judicial precedent for the ban or substantial curtailment of concealed carry rights. But the justices apparently failed to understand WHY such laws existed heretofore. It's because during most of that time period Americans were typically armed with rifles/muskets -- obviously open-carried. Handguns weren't commonly available or owned then, but, to the extent they were, they too were also normally open-carried. (Think: frontier pioneers and the Old West). Against that backdrop it's quite understandable that government outlawed concealed carry.

 

Since the mid-1900s handguns have become far more popularly owned by Americans (perhaps as many as 25% now, and the percentage is growing daily). The 2008 U.S. Supreme Court decision in District of Columbia v. Heller declared that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes ..." The justices also ruled that governments can lawfully impose certain 2nd Amendment restrictions including on "dangerous and unusual weapons." (emphasis added) The SCOTUS 2010 decision in McDonald v. City of Chicago reaffirmed the Heller decision, finding that the individual's right to "keep and bear arms" is the "central component" of the 2nd Amendment, and found that the right includes handguns for the fundamental lawful purpose of self-defense. The Court further asserted that States and municipalities are also bound by the 2nd Amendment.

The Ninth Circuit Court's decision in Peruta obviously failed or refused to recognize the incontrovertible facts that handguns are neither especially dangerous nor "unusual weapons." The Ninth Circuit's ruling and justification represent a shameful affront to the 2nd Amendment, the Supreme Court, objectivity, and common sense. (One wonders if the 9th Circuit decision was a veiled "dis" of the late Supreme Court Justice Antonin Scalia.) Furthermore, the Ninth's decision potentially endangers public safety -- at a time when more and more Americans acknowledge burgeoning criminal and terrorist threats. Given the disagreements about concealed carry among the federal circuit courts, SCOTUS will likely have to be determinative. Hopefully the next Supreme Court appointee will have a keener appreciation of the Second Amendment and related facts, along with the requisite intellectual integrity and courage.

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I'm not saying they can, but I think they will try. This ruling will give them a sense of empowerment.

 

They're still bound by the 7th Circuit ruling here.

 

 

 

I thought that ruling only prevented Illinois from enacting a "complete" ban on carry, but left it up to the lawmakers as to whether the law would be "shall issue" or "may issue".

Posner (and Flaum) wrote that the regime could be similar to the NYS regime that was being challenged in Kachalsky but also stated that it could be constitutional to have may issue. Not that it is, as the court was not asked to address the constitutionality of a particular licensing regime. I doubt that the court would've been willing to address the issue of open carry as the true constitutional issue was/is the total ban on carry outside the home. Posner afforded the ILGA great deference (which it did not deserve) but never stated that shall issue is the only regime which is constitutional. He also never stated that may issue is constitutional. His mocking of CA2 in Kachalsky conflating carry outside the "four corners" with gay people having sex on the sidewalk (Lawrence v. Texas, SCOTUS struck down Texas sodomy law as applied) is a little telling....that he doesn't have much respect for judges that conjure up garbage to justify their rulings or have no idea how to rule so they just "play it safe" (ie Woollard).

 

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​You may openly carry the flintlock pistol of your choice.

Not if it is within 1,000 feet of the grounds of a K-12 public or private school where the California Gun-Free School Zone Act of 1995 does not provide for an exception. California Penal Code section 626.9, unlike the Federal GFSZ Act of 1995, applies to all handguns regardless of whether or not they are antique or modern.

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What happens if a court case makes it's way to the 9th circuit challenging that ban on open carry? If someone were to challenge the open carry bans as unconstitutional it may stand a chance in the 9th circuit since the 9th circuit stated that concealed carry is not the protected right. If concealed carry is not protected than open carry must be the protected right. Also if the supreme court rules they may be forced to state in the ruling that open carry is the protected right.

The US Supreme Court has already said that Open Carry is the right guaranteed by the Constitution. As to your first question, there already is an Open Carry sitting in the 9th Circuit inbox, mine -> http://blog.californiarighttocarry.org/?page_id=739

 

Nichols v. Brown et al

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What happens if a court case makes it's way to the 9th circuit challenging that ban on open carry? If someone were to challenge the open carry bans as unconstitutional it may stand a chance in the 9th circuit since the 9th circuit stated that concealed carry is not the protected right. If concealed carry is not protected than open carry must be the protected right. Also if the supreme court rules they may be forced to state in the ruling that open carry is the protected right. If people were to begin legally openly carrying in California in large numbers it may pressure politicians change the licensing system to shall issue.

That's the thinking. See the Nichols case at californiarighttocarry.org . There's also the Hawaii case Baker which was originally heard with Peruta when it originally was heard by the 9th. It's currently in limbo; no one knows if it gets reheard by a 3 judge 9th circuit panel or gets sent back to the district. Baker had asked for a license to open or conceal carry.

 

The Baker case is the appeal of a preliminary injunction. In light of the (limited) en banc decision in Peruta v. San Diego, the denial of the preliminary injunction is affirmed. Or it could be denied as moot given that Baker's attorney asked for a remand and said he wouldn't file for any more preliminary injunctions in the case. The more interesting question is what happens with the Young v. Hawaii case in which Young is represented by the same attorney as Baker?

 

Young v. Hawaii is appealing a final judgment which is procedurally a very different case. There are a couple of fatal defects in the Young v. Hawaii appeal which should be obvious to any third year law student but apparently not to Young's attorney. The "Conclusion" section of the Opening Brief is that part of the brief which tells the court of appeals just exactly what it is the appellant/appellee is asking for. As to Young's challenge to Hawaii's Long Gun Open Carry ban (and Taser ban), Young's attorney asked the court to compel the legislature to write a new law. There are many kinds of relief a court can grant. An order compelling a legislature to write a new law is the one thing that a court cannot do. Young loses on that.

 

As to carrying handguns in public. Young's attorney (Alan Beck) made a very similar mistake as Alan Gura did in the Palmer v. DC case while adding a couple of mistakes all on his own. Beck included an "or" in his challenge to HRS 134-9. In this case, the alternate relief is even broader than Gura's ask in Palmer. But assuming the court doesn't want to drive a truck through it, Beck asks that the court issue an Order "compelling the City Defendants to adopt policies to allow it to survive constitutional muster."

 

The City Defendants are following a state law. The City Defendants are not allowed to adopt policies in conflict with state law. As Beck framed his request from the court in his challenge to HRA 134-9 as alternate relief, the court is not obligated to consider his request for an injunction.

 

Beck had better hope that the court schedules oral arguments in his case so he can spend all of his time on his knees begging the court to remand his case back to the district court for a do-over on the grounds that his case was dismissed by the district court with prejudice on a motion to dismiss as opposed to a motion for summary judgment. Beck could claim during oral arguments that his case before the district court is capable of being amended and a remand back to the district court for a do-over would not be futile.

 

But the court of appeals might take the case under submission without a hearing. If that happens, the case is over. There are no grounds to appeal to SCOTUS.

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With the 9th and 7th at odds, SCOTUS has got to take up the case. The makeup of the supreme court is scary.

 

I am very scared.

Except that the 9th and 7th circuits are not at odds. Nor is the 9th at odds with any circuit or state high court decision. Sorry, no Rule 10 split, no grounds for cert being granted.

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The thing that concerns me about the upcoming election is that Trump won only open primaries. How may democrats crossed over just to vote for Donald figuring he will be the easiest to beat?

Exactly why we need to cut the "I am voting 3rd party" stuff out. I get that he is not the first choice of many but if Hillary is not your preferred candidate then you had better vote Trump. Realistically there are 2 people who have the chance to be elected in November.

 

 

At this point, with the electoral college, it doesn't matter...

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Links to Petitions for (full) en banc rehearing in Peruta v. San Diego and Richards v. Prieto concealed carry appeals:

 

These were filed yesterday (Thursday June 23, 2016). NOTE: These are large files. You might have to download them locally before viewing.

 

Peruta v. San Diego petition.

Richards v. Prieto petition.

 

Some folks are under the mistaken impression that your Moore v. Madigan decision said that states can ban Open Carry in favor of concealed carry. If that were true then the petitioners here would certainly have grounds for an en banc rehearing before the entire court in order to resolve the circuit conflict.

 

However, neither of the petitions make that claim. The Peruta and Richards petitions contrive conflicts but these "conflicts" are to how the case was decided, not what was decided. There are no grounds for the petitions to be granted. The lawyers know this and Chuck Michel, one of Peruta's lawyers, knows this. He said on an episode of Cam & Co that his reason for filing the petition was because he hoped he might pick up dissent(s) from the denial of his petition.

 

Perhaps I should qualify that a bit. Alan Gura, one of Richard's two lawyers, might truly believe that he has legitimate grounds for his petition being granted but I think his saying judges who uphold concealed carry bans are no different from judges who stand by while police murder people in the street is going to give pause to most of the circuit judges. Seven of them said that there is no right to concealed carry. They no doubt have friends on the court who disagree that there is no right to concealed carry but that doesn't mean that they aren't friends just because they disagree. Justice Scalia and Ginsberg disagreed on the Second Amendment right but they remained close friends right up until his death.

 

In any event, today the Chief Judge asked for responses to the petitions which are due within 21 days (due by July 15th). The petitions and responses will be circulated, memos will be exchanged and finally a vote will be taken on whether or not to grant the petitions.

 

The last time this happened it took exactly four months.

 

Don't wait up.

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  • 3 weeks later...

 

Anyone know how the total of CC in California?

 

According to what I found in September of 2011 there were 35,000 CCLs there. Population in 2011 was about 37.7 million so that comes out to less than 1 in 1000, that of course includes children.

 

I'm not sure on the exact numbers. It varies by county as your county sheriff is the one who ultimately approves/denies your CCL in CA. Urban counties have few CCL holders as they tend to be very anti-2a, with the exception of the San Diego area. In order to get a CCL in urban areas you have to be a celebrity or major campaign donor to the county sheriff. In the rural counties, its close to, if not, shall issue. If you look at CCL per capita in CA you will see the counties stratified with urban counties having microscopic rates while rural counties will have higher rates.

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The Intervenor State of California filed its response to the Full Court petition on July 15th in Peruta v. San Diego. San Diego Sheriff Gore did not file his response. This happened the last time around. A month later, the Court issued another order directing him to file a response.

 

The Intervenor State of California and Yolo County Sheriff Prieto filed their responses on time in the combined case, Richards v. Prieto.

 

Tomorrow marks 30 days since the petitions for a Full Court hearing were filed. Last time around it took 120 days for the en banc petitions to be decided. I don't foresee it taking any longer this time around.

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The Peruta lawyers just filed an unusual motion to file a response to the response of the Intervenor State of California's response to the petitions for Full Court rehearing. They repeated the same delusional claims they made in their petition for a Full Court rehearing which can be boiled down to "We never claimed that there is a right to concealed carry therefore we have a right to shall issue concealed carry permits because when the Heller decision said there is no right to concealed carry what it really said was that Open Carry can be banned in favor of concealed carry."

 

The four justices in the minority of the Heller decision read the majority decision to say that concealed carry is not a right and can therefore be banned (see below). This makes the Peruta lawyers pathological liars or fools.

 

"In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
"But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons..." Heller dissent at 2851
"I am similarly puzzled by the majority's list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) "prohibitions on carrying concealed weapons"..." Heller dissent at 2869
"[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

 

 

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  • 4 weeks later...
Update August 15, 2016 by Charles Nichols – President of California Right To Carry – FULL COURT PETITION DENIED. Now we wait for the mandate to issue (7 to 30 days from August 15, 2016) at which point this case is over as far as the 9th Circuit Court of Appeals is concerned. All that is left for the plaintiffs is to file a cert petition with the US Supreme Court which will be denied.


The following transaction was entered on 08/15/2016 at 1:24:41 PM PDT and filed on 08/15/2016


Case Name: Edward Peruta, et al v. County of San Diego, et al

Case Number: 10-56971




Docket Text:

Filed order (SIDNEY R. THOMAS) The full court was advised of appellants’ petitions for full court en banc rehearing (Docket Entry Nos. [334] and [335]). A judge requested a vote on whether to rehear the matter en banc by the full court. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of full court en banc consideration. Fed. R. App. P. 35. Accordingly, the petitions for full court en banc rehearing (Docket Entry Nos. [334] and [335]) are denied. In No. 10-56971, appellants’ motion for leave to file a reply brief (Docket Entry No. [344]) is denied as moot. [10087152] [10-56971, 11-16255] (OC)



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This leaves California without any right to carry outside the home, correct?

It's still a privilege requiring individual approval on a case by case basis?

That's how I'm reading it, since they don't mention open carry in the case, don't allow it anymore, but simultaneously ruled that there is no right to concealed carry.

 

Assuming Trump wins and replaces Scalia with a constitutionalist, how long can the case sit in limboland before being appealed? I doubt the rules of the court would allow them to stall until such a time that a new justice can be appointed.

 

This is also why I hate California, which is a shame because it's rather beautiful in parts.

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This leaves California without any right to carry outside the home, correct?

 

It's still a privilege requiring individual approval on a case by case basis?

California laws regarding carry in public read like plans for a Rube Goldberg contraption. The "simple" rule for California is that concealed carry is prohibited everywhere except for where there is a statutory exception to the prohibition and Open Carry is legal everywhere except for where there is a statutory prohibition.

 

With few exceptions, such as for judges and qualified retired law enforcement officers, the issuance of permits is left solely to the discretion of county sheriffs and chiefs of police who can place any manner of restrictions as to when and where the permit is valid.

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This leaves California without any right to carry outside the home, correct?

It's still a privilege requiring individual approval on a case by case basis?

That's how I'm reading it, since they don't mention open carry in the case, don't allow it anymore, but simultaneously ruled that there is no right to concealed carry.

 

Assuming Trump wins and replaces Scalia with a constitutionalist, how long can the case sit in limboland before being appealed? I doubt the rules of the court would allow them to stall until such a time that a new justice can be appointed.

 

This is also why I hate California, which is a shame because it's rather beautiful in parts.

 

The plaintiffs have 90 days within which to file their cert petitions or to ask the court to grant an extension of time to file their cert petitions. As there is no SCOTUS Rule 10 split, the cert petitions will be denied even if Trump wins and he appoints a clone of Scalia.

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